Live public debates on our Constitution
April 3, 2013
Debating the Constitution
During April and May, the NZ Centre for Public Law (with generous support and funding from the NZ Law Foundation) will host a series of debates on issues raised by the Government’s review of the New Zealand constitution. The debates will be broadcast on Radio NZ National. Join us on VUW Kelburn campus to be part of our live public audience.
Moderator: Steven Price, barrister
“What’s the problem?” Monday 8 April, Hunter Council Chamber, 6:30pm
Speakers: Professor Bruce Harris, Moana Jackson, Dame Claudia Orange, Dr Matthew Palmer
An examination of the origins of the constitutional review, and the process set up to support it. Should we be cynical about its political motives, embrace it as an opportunity for public engagement, neither or both? Do its terms of reference make sense? Is a process like this necessary or desirable? Has the process been set up in a way that could support real change?
“Reforming our democratic institutions” Monday 15 April, Hunter Council Chamber, 6:30pm
Speakers: Dr Maria Bargh, Colin James, Professor Elizabeth McLeay, Sir Geoffrey Palmer QC
The constitutional review’s terms of reference include the term of Parliament (and whether it should be fixed), the size of Parliament, the size and number of electorates, and issues relating to Māori electoral representation. The debatees will cover these issues and others that they consider important to the quality and effectiveness of our democratic system.
“Māori aspirations for constitutional change” Monday 22 April, Te Herenga Waka Marae, 6:30pm
Speakers: Tai Ahu, Dr Rawinia Higgins, Veronica Tawhai, Valmaine Toki
Four newer voices from the Māori community discuss the nature of Māori aspirations for constitutional change, broadly conceived. The discussion will move well beyond the status of the Treaty of Waitangi, and include consideration of alternative models of Māori-Crown relationships, the development of a kaupapa Māori or tikanga-based constitution, and Māori constitutional aspirations in the context of indigenous peoples’ rights at the international level.
“Human rights in the constitution” Monday 29 April, Hunter Council Chamber, 6:30pm
Speakers: Professor Andrew Geddis, Jack Hodder QC, Stephen Whittington, Professor Margaret Wilson
New Zealand has no formal written constitution and its bill of rights is an ordinary law that cannot be used to strike down other laws. Should our Bill of Rights be entrenched and supreme law, or not? Should we have one at all? If so, what other rights should it include? Or not include? In broader terms, what steps ought to be taken to protect the human rights of New Zealanders?
“Time to be a Republic?” Monday 6 May, Hunter Council Chamber, 6:30pm
Speakers: Jim Bolger, Professor Janet McLean, Michael Mabbitt
Is it time to replace the Queen as our head of state and become a republic? If not, will it ever be? What would that involve, and what will be the major issues confronting us if and when we do so?
The NZ Centre for Public Law wishes to acknowledge the generous financial support of the NZ Law Foundation for this event.
Topics: General | No Comments »
The NZ Herald’s weird response to the Law Commission
March 28, 2013
The NZ Herald has editorialised about the Law Commission’s proposal to set up a new News Media Standards Authority.
It seems to veer between cautiously welcoming the report, and suggesting that the system ain’t broke. (No mention of the increasing absurdity of having different standards and complaints processes applying to what is essentially identical material, or the problem of working out who should receive the legal privileges bestowed upon the media. Or the troubling fact, unearthed by a Law Commission survey, that three quarters of us have never even heard of the Press Council, the complaints body you could take your NZ Herald complaint to.)
The Herald’s main theme is that media self-regulation is essential. We don’t need government involvement. (Where have we heard this before? Oh yes, the Herald).
The Herald concludes that
Press freedom is not abused in this country, New Zealanders do not pay for unreliable news.
The NZ Herald, of course, is “reliable news”, that New Zealanders do pay for. (Any bets on how much longer this will last? Do falling circulations mean its reliability is declining too?).
I wonder whether it’s worth complaining to the Press Council about the statement that “Press freedom is not abused in this country.” It’s plainly inaccurate. The Herald itself had to make a front page apology for its misleading campaign against the Electoral Finance Bill, for example. Anyone who believes the media doesn’t abuse its freedoms in NZ could spend a profitable hour or two at the websites of the Press Council and the Broadcasting Standards Authority.
It’s surely also wrong to say that we don’t pay for unreliable news. I can think of several patently unreliable magazines that are still in the bookstores. Unethically gathered and presented news and commentary is often more popular than “reliable” journalism.
But it’s surely fair to say that our mainstream media is generally pretty ethical, and perhaps that’s all – with some rhetorical licence – the Herald meant.
That’s no excuse for the other inaccuracies in the editorial, though.
The Herald says:
The Law Commission’s final suggestions for media regulation were tabled in Parliament yesterday and they are a good deal better than its proposal of 15 months ago. Crucially, there is now no suggestion that a new adjudication panel for public complaints will be a created by statute.
This is artfully misleading. The Law Commission never recommended a new complaints panel “created by statute”. It put forward two options: a complaints system where membership was voluntary, and one in which it was compulsory (at least for big media). “We seek views on the preferable option,” it wrote.
It said both of these options would require statutory backing. The first would require a little more, since membership could only be made compulsory by statute. In fact, the Law Commission’s final proposal also requires statutory backing. But whichever option was selected, it is clear that the Law Commission did not have in mind a complaints body created by statute, in the sense that the Act would spell out the complaints process and the standards and provide for government appointments. The models it looked at – whichever option was chosen – were about “a regulatory system operating quite independently of the state.” Even if membership was to be made compulsory, all the important design features of the system would be drawn up independently of the government.
The Herald says the new NMSA
would assess complaints against a code of practice agreed with the industry and members…
Nope. NMSA would draw up the code itself – after consultation with industry and the public. There’s a significant difference here. The media get no veto right over content.
The Herald says:
Only those who submitted to the new authority would enjoy the “privileges” of recording proceedings of Parliament and the courts…
Wrong again. The Law Commission didn’t make recommendations about recording proceedings in Parliament or the courts. One of the privileges is about access to court proceedings when a courtroom is closed to the public, but it’s very likely that a judge would have the power to allow in others (such as the editor of a legal magazine not published to the public).
The Herald says bloggers are unlikely to join so that:
Many of them might remain answerable to no authority except the common law – if it can find them.
Yes. And the criminal law too, let’s not forget, and civil obligations under statute. So that’s name suppression laws, threats, harrassment, criminal trespass, illegal interception, the Privacy Act and quite a lot more. Or does the Herald think that’s part of the common law? You know, I think it probably does.
But putting all that aside, surely it’s significant that the blogger who doesn’t sign up to NMSA will be – as the Law Commission points out – subject to the Communications Tribunal it recommended in December to deal with online harrassment. So perhaps there’s a little more incentive than the Herald is suggesting for a news blogger to join NMSA and a stronger laws for that blogger to navigate if she or he doesn’t .
Helpfully, the Herald also says:
Those receiving the commission’s report might need reminding that no serious problem exists.
Compared with the outrageous press abuses such as phone hacking and bribery of police that triggered the Leveson inquiry, this is undoubtedly true. But those receiving the Law Commission’s report will not need reminding of it. The Law Commission makes precisely that point, several times. In fact, on the front page of its press release, it says:
It is important to understand that unlike Britain’s Leveson Inquiry, the Commissions’ review was not driven by a crisis in confidence in the mainstream media.
And it’s not true that no serious problem exists. The problem is digital convergence. And if the Herald doesn’t like the Law Commission’s solution, which is pretty similar to the regime its own industry set up, then I’m sure we’d all be interested in what it suggests instead…
Topics: Broadcasting Standards Authority, Press Council | 47 Comments »
TVNZ’s weird response to the Law Commission
March 28, 2013
Stuff is reporting that the NMSA is “not to broadcasters’ liking” and that “broadcasting agencies said dissolving the BSA would leave gaping holes for their non-news content.”
Odd. For one thing, Stuff only seems to have talked to one agency, TVNZ. The TVNZ spokeswoman said she was concerned that broadcasters like TVNZ, which show both news and current affairs content and entertainment programming, would be accountable to different standards bodies.
“You have to ask if that will be any less confusing to viewers who want to lay a formal complaint.”
This hardly makes any sense at all. Is TVNZ worried that there would be gaps for non-news content (because the BSA would be abolished) or that there would be two sets of standards (because the BSA would be retained)?
I don’t know whether the confusion comes from Stuff or TVNZ, but I do know there’s confusion.
The Law Commission’s proposal only relates to news, current affairs and factual programming. So there may be some residual role, perhaps temporarily, for the BSA, in relation to entertainment content (ie does it breach standards of taste and decency? is it unsuitable for children?, but not whether it’s fair and accurate). In a short chapter in the end, the Law Commission suggests that the government review the question of how we set standards in relation to entertainment content.
True, there will be some fuzziness about the edges of the concept of factual programming. When does reality TV become entertainment? Docu-dramas? The Law Commission says if it purports to provide factual information about real people, it’s within NMSA’s bailiwick. There’ll be a few programmes on the margin. But not many. It will usually be obvious who to complain to. And it’s likely that the censor’s office and the remaining BSA powers will be rolled up at some stage: that’s another messy interface in the law.
But the biggest head-scratcher here is the suggestion that broadcasters are hostile to the report. Most have accepted the looming need for a converged regulator. Many have been suspicious of the BSA and its political appointments and statutory basis. They prefer self-regulation. Well, the Law Commission’s proposal seems a big step in the right direction by those lights.
If there’s a real dual-complaint issue, then surely it’s the problem that many people will complain both to the BSA (about a particular broadcast) and the new Online Media Standards Authority (about the fact that it’s now on the broadcaster’s website), so the broadcaster will have to track two sets of standards and two sets of complaints jurisprudence.
It gets better: their funding obligations may be smaller. They get an appeal right to an NMSA appeal body (easier than using the courts, and probably with a wider appeal remit). There’s a mediation process that may head off court claims. There is no chance that damages will be awarded against them, and the Law Commission makes no mention of costs.
If you’re a broadcaster, what’s not to like?
Topics: Broadcasting Standards Authority | 49 Comments »
Labour’s weird response to the Law Commission
March 28, 2013
News Media Standards Authority: good idea! says Labour. Just make sure there are no political appointments:
Consistent ethical standards for all forms of media are necessary but politicians should be kept away from appointing complaints bodies and setting terms of reference, said Labour’s Broadcasting, Communications and IT spokesperson Clare Curran and Justice spokesperson Andrew Little.
Um, yeah. Except that:
(a) One of the fundamental principles of the Law Commission’s report is that there should be no political interference in the NMSA. They discuss this repeatedly. They recommend a rigorously independent process for setting up the NMSA and appointing its management and its complaints body so that there is no interference by politicians or the media industry. So why labour this point, Labour?
(b) Where was this principle when Labour was passing the Broadcasting Act, which provides for the political appointment of Broadcasting Standards Authority members?
(c) Is there really one scrap of evidence that this political appointment process has translated into the BSA’s decisions? The Law Commission didn’t think so. I don’t think so, and I’ve kept an eye out for it.
Topics: Broadcasting Standards Authority, General | No Comments »
One-stop-shop for media complaints – Law Commission
March 26, 2013
The NZ Law Commission has recommended that we scrap the Press Council, Broadcasting Standards Authority and nascent Online Media Standards Authority, and replace them with one body setting and policing news standards across the board.
The Commission suggests we call it the “News Media Standards Authority” (NMSA). It would look more like the current Press Council than the BSA. Essentially, it would be a self-regulatory body, set up to be independent of the government and the media industry. It would draw up its own set of standards and a complaints process (though the Commission has made a series of suggestions about how it “should” work).
For consumers, this would mean they could complain to NMSA about news, current affairs or factual programmes or stories pretty much wherever they are published. There wouldn’t be three differents sets of standards and complaints processes depending on the publication platform. The standards can be expected to cover the journalistic staples: accuracy, balance, fairness and privacy. The complaints process is supposed to be speedy, informal and cheap. There’s a mediation process to help resolve complaints in some cases. NMSA’s complaints panel would contain a majority of public members, and its funding and management would also be genuinely independent of the industry and the government. It could order corrections, rights of reply, take-down, and apologies. A disappointed complainant could appeal. A very disappointed complainant could still take a case to court.
On the other hand, I suspect many consumers will be concerned to discover that they will not be able to obtain damages under any circumstances, and that the Commission’s recommendations don’t even contain any mention of costs. Broadcasters and publishers are quick to cry foul when complainants get themselves lawyers, but they quietly neglect to mention that their own editors and lawyers, experienced with the standards and talented with turn of phrase, can often run rings around unrepresented complainants.
Another possible problem: you can only complain against media companies who sign up to NMSA. How many will do so? We don’t know. It’s voluntary.
So what’s in it for the media? Well, for one thing, avoiding a statutory regime. If this proposal doesn’t work out, they must surely expect government will have to move in and regulate more heavily.
But the media get more than this. The law grants various privileges to the news media: access to court in some situations, news exemption from the Privacy Act and Fair Trading Act, protection of the confidentiality of sources, and exclusion from the Commission’s proposed digital harrassment Communications Tribunal. The Commission has suggested throwing in a couple more goodies. Members would be eligible for NZ on Air news funding. There would be a mediation system for complaints otherwise headed for the courts, such as defamation and privacy cases. Perhaps most important, the Commission says, is the brand advantage: membership of NMSA is like a quality mark on their news products.
There are other advantages. They would avoid a proliferation of complaints to different bodies. (For example, pretty much everyone who complains to the BSA ought also to complain to OMSA, once it’s up and running next month. That is, if you’re complaining about a TV broadcast, you should also complain about the publication of the same material on the broadcaster’s website. That’s going to mean more work all round, and, since the standards are slightly different and the complaints personnel are very different, we’re likely to see conflicting decisions emerge.)
Publishers would also get the right of appeal to NMSA’s complaints appeal body, which is better than appeals to court (BSA) or none at all (Press Council). What’s more, the existence of NMSA is likely to head off some complaints that would otherwise go to court.
On the other hand, there will be membership fees. Those are likely to be higher than at present for print members and perhaps lower for broadcasters. It’s questionable whether the statutory privileges are really all that useful to the media, and where they are, it’s questionable whether Parliament will really be prepared to strip them from media organisations who don’t play ball with NMSA. Would they really take away TV3’s right to source protection under the Evidence Act if TV3 didn’t sign up? Would they really force news media organisations to comply with the strictures of the Privacy Act’s principles? (There’s room for argument about how these might apply to news organisations, and those arguments stretch right from “they’ll barely make a difference” to “they’ll cripple any organisation’s ability to gather news effectively”).
If they join, they’ll probably be subjecting their journalists’ every tweet to a possible complaint. (Twitter itself, and Facebook, and Google can’t join NMSA. Freelance journalists who tweet regularly can. And organisations like TVNZ who join will be open to complaints about all their journalists’ professional activities, including tweeting, and including how they go about gathering information).
Interestingly, anyone publishing news or comment or factual material regularly and for a public audience can join. That includes many bloggers. But it also means that authors, one-off documentary makers, and trade publications can’t join. I wonder if some special or associate material might be designed for people like this.
If a few big media organisations don’t sign up, then it’s hard to believe that this system will be viable. I suspect that this will give them quite a lot of leverage when the system is being designed. How sure can we be that big media organisations won’t say, explicitly or implicitly, “well, we’ll join, but only if you cast that privacy standard more narrowly, or take out the power to order apologies, or reduce the fees…”. If that happens, is that true independence from the media industry?
All in all, this looks like a better deal for broadcasters than the print media, who already enjoy many of the advantages of this system. But it really needs widespread support to work at all.
If it does get up and running, it will be reviewed after a year to see whether it measures up. But the first thing to watch for is the government’s response, since the system needs a few statutory tweaks to make it work at all.
Topics: Broadcasting Standards Authority, Future of journalism, Media ethics, NZ Bill of Rights Act, Press Council | 48 Comments »
On purpose
March 21, 2013
If someone applies for a civil restraining order under our Harrassment Act, there is a defence of lawful purpose.
I’ve often wondered just how far this can be taken. It must surely be a lawful purpose to tell someone that you love them. But it’s hard to see that excusing a fellow who pursues this purpose by emailing and texting his reluctant beloved fifty times a day, writes her letters, waits outside her house, and delivers copious gifts of hand-made Star Wars figures.
The UK Supreme Court may have shed some light on this. In an analogous context, it has ruled that for a purpose to be legitimate, it must be something that they intend (a subjective element), but also that it must not be irrational (an objective element). It remains to be seen whether our courts will pick up on this.
Topics: Harassment Act | No Comments »
Leveson solution
March 21, 2013
If you’re interested in what the British politicians have drawn up to implement the Leveson report, you could do worse that take a gander at this summary.
Topics: General | No Comments »
Law Commission praised
March 21, 2013
Last night, delivering the Robin Cooke memorial lecture, UK Court of Appeal judge Dame Mary Arden was full of praise of NZ’s Law Commission’s paper on media regulation. She noted that, unlike the Leveson inquiry, the Law Commission’s brief was to consider media regulation as a whole, not just focus on print media. The Commission’s paper suggested there should be one independent regulator (with – horror! – some statutory underpinning). Dame Mary said the idea of a converged regulator was “overwhelmingly logical”.
(It will be interesting to see whether the Law Commission maintains this position, and whether it reaches a view on whether membership should be compulsory, and for whom, when it releases its final report, due shortly).
The main point in Dame Mary’s lecture, “Press, Privacy and Proportionality”, was that the judicial review ground of unreasonableness will be replaced by review for proportionality, and that this is nothing to fear. This is a big deal: under the traditional view, to challenge a government decision for unreasonableness, you’ve got to show it’s outlandish. Under a proportionality assessment, if the decision affects rights, the government has to show it’s necessary for some significant purpose. But Dame Arden says that proportionality is a flexible standard: its application will vary depending on things like the expertise of the original decision-maker, and that the courts must be careful to ensure that governments aren’t prevented from fulfilling their constitutional roles.
Certainly it’s true that the European Court of Human Rights and some domestic courts have been using proportionality, or something like it, to strike the balance between free expression and privacy rights for some time now, and that this is reflected in a the emergence of a set of principles concerning responsible journalism, as Dame Adern noted. And some aspects of the Leveson solution (such as the levels of costs and damages) may call for proportionality assessment. But I must confess that the link between this and her point about judicial review seemed somewhat opaque to me.
Topics: General | 48 Comments »
Unhealthy secrecy?
March 20, 2013
A hard call
Was the coroner right to suppress the names of the health care workers involved in the tragic death of Zachary Gravatt of menigicoccal disease in 2009? After all, he found the hospital was swamped with swine flu victims and Zachary’s symptoms were very similar. He was given considerable care and attention, and the disease was identified within five hours of his arrival at hospital. But it was too late.
The coroner said there were errors, but they were systemic ones; individuals weren’t at fault. He said that naming the health care workers would “effectively be punishing individuals for an overwhelmed and overstressed system”. It would “set an extremely dangerous precedent for future media coverage” and “serve to discourage good health professional from seeking employment and experience in the New Zealand Health system. It has the potential to seriously undermine confidence in the health system as well.” He noted the importance of free speech, but pointed out the the health board was making the necessary changes to the system and that his findings could still be publicly understood and debated without the names.
Some points of interest
There are lots of interesting things about this. First: he surely makes some good points. Do we really need to know the names for the public interest to be served? Don’t the workers have some entitlement to privacy? Isn’t it true that they are likely to suffer if publicly named? Shouldn’t we pity them rather than put them in the pillory?
Second, the coroner’s reasoning didn’t have much to do with the things that are being raised in the debate about this case. It was not based on any notion that health care workers would not be free and frank when tragic incidents like this were investigated. This is surely right. In this case anyway, the relevant staff would easily have been identified if only from the paperwork generated during Zachary’s care, and there’s no suggestion that they were less than forthcoming in their contribution to the inquest. Nor was the suppression decision based on any prediction that the news coverage would itself be inaccurate or unfair – rather that the mere publicity would be unfair.
Third, I think he goes a bit far. Will this really stop people from becoming nurses and doctors? How exactly might naming these people undermine confidence in the health system? What precedent is being set except that people in the news can generally be named?
The High Court overturns the suppression
Justice Whata made some of these points in overturning the coroner’s suppression decision. He pointed out that the coroner could only suppress names “if satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so” (s74 of the Coroners Act). He noted that the right to freedom of expression and the principle of open justice were in play.
The general approach to restricting rights
In an important general statement, he set out the proper approach to reconciling these interests. If free expression is at stake, there must be express statutory permission to suppress. (He may be overlooking some common law powers of suppression here, but perhaps he was focusing on the case at hand). Next, that statutory power must be interpreted and exercised consistently with freedom of expression. In other words, when working out the scope of the power to suppress, free speech must be factored in. Wide suppression powers must be read narrowly if necessary to prevent unjustified restrictions on speech. This is about the legal meaning attached to the power of suppression. (This is really no more than section 6 of the Bill of Rights requires).
Third, “even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified.” So even where there’s a power to suppress, the jugde must weigh up the benefits to society against the harms to free speech in the particular case. This is what section 5 of the Bill of Rights requires.
I think this is to be welcomed: judges don’t always accept that free speech requires this dual approach. How do we interpret the power? Then: how do we apply the power? A restriction on free speech that falls within the scope of a wide discretionary power but produces an outcome that cannot be demonstrably justified is unlawful. (Admittedly, these questions can be difficult to separate sometimes).
The law applied
Justice Whata then rightly looks at the legal grounds available to the coroner: public order, privacy, the interests of justice and decency. Decency plainly isn’t a starter, so he examines the others, each of which was relied on by the coroner.
Public order in this context couldn’t include some generalised concern or fear that other health professionals might be deterred from participating in the health system.
The interests of justice might include reputational impacts (I’m not so sure about that one), but the coroner’s report didn’t impugn the workers’ character or reputation: “the latent potential for unfair media criticism is too opaque a basis to derograte from freedom of speech on interest of justice grounds.”
Personal privacy must relate to reasonable expectations of privacy, and that doesn’t usually include the names and roles of officials.
He concludes that suppression can’t be approached in a broad brush way. “The relevant factors weighing for and against publication must be assessed on a fine grained basis, so that here is surety that the statutory grounds for suppression are present, and that the principles applicable have been applied appropriately and the proper balancing exercise has been undertaken.”
An ongoing theme?
Here we see what’s likely to be an increasing theme in Bill of Rights jurisprudence: judges taking this question of whether a restriction on a right is justified, and turning it into a methodology. Has the original decision-maker weighed up the relevant factors, applied the right principles, asked the right questions? If so, then a judge on review is unlikely to substitute his or her judgement about whether that restriction was reasonable and demonstrably justified.
I’m not sure this is inappropriate, particularly when the initial decision maker (such as a tribunal) has some particular expertise. But it is in tension with recent UK Supreme Court authority in the Denbigh High case, which says that a decision is either a disproportionate or it’s not, and a judge on appeal or review must exercise his or her own judgement about it. That also seems to be the view of our own Chief Justice in the Morse case.
I’m sure the last chapter on this question has not been written. But it may have an extremely important impact on how much bite the Bill of Rights has.
Topics: NZ Bill of Rights Act, Suppression orders | 49 Comments »
Defamation damages against anonymous Facebook troll(s)
March 18, 2013
The High Court in Northern Ireland has awarded defamation damages against a defendant known only as “a person or persons adopting the pseudonyms Ann Driver and Alan Driver”.
“Ann” and “Alan Driver” had smeared the plaintiffs’ reputations on Facebook. The INFORRM blog suggests that his/her/their true identity was never established, and the judgment will only bite financially in the unlikely event that they are identified.
The court was also prepared to grant the plaintiff’s anonymity.
The judge said the case demonstrates that “the law, through the courts, penetrates the sheilds and masks of anonymity and concealment. Effective remedies are available and will be granted in appropriate cases”.
If INFORRM is rigtht that the defendants weren’t actually identified, that conclusion seems questionable.
Topics: Defamation | No Comments »
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